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STATE OF ILLINOIS

IN THE CIRCUIT COURT FOR THE FIFTEENTH JUDICIAL CIRCUIT

JO DAVIESS COUNTY

HELPING OTHERS MAINTAIN

ENVIRONMENTAL STANDARDS, an

Illinois Not for Profit Corporation, Leroy

Behrens, Laurel Behrens, Mary Jo

Burke, Juanita Cropper, Jeffrey Graves,

Dean B. Hicks, Kathleen M. Hicks, Steve

Holesinger, Will Liberton, Lori Runkle,

Richard Runkle,

Plaintiffs,

vs.

A.J. BOS, TRADITION INVESTMENTS,

LLC, an Illinois Limited Liability

Corporation and THE ILLINOIS

DEPARTMENT OF AGRICULTURE, an

Agency of the State of Illinois,

Defendant.

))))))))))))))))))

Case No. 2008 CH 42

MEMORANDUM IN SUPPORT OF MOTION TO DISSOLVE PRELIMINARY INJUNCTION

The Defendants, A.J. Bos and Tradition Investments, LLC, by their attorneys,

McGreevy Williams, P.C. and Nack, Richardson & Nack, P.C., state as follows for their

memorandum in support of their motion to dissolve the preliminary injunction entered in this

cause.

I. Introduction.

The Defendants request this Court to dissolve the preliminary injunction. The

Defendants have had the opportunity to look behind the Plaintiffs’ claims, and to prove that

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the Plaintiffs’ experts’ claims are spurious. The Plaintiffs overstated these claims in order to

meet their burden - which was and remains to prove that a nuisance “will necessarily result,”

and is “real and immediate” (see infra). But, as is set forth in detail below, the Plaintiffs’

claims are unsupported by fact and rise only to the level of speculation and conjecture.

As a result, the preliminary injunction must be dissolved.

Under 735 ILCS 5/11-108, “[a] motion to dissolve an injunction may be made at any

time before or after [an] answer is filed. Upon motion to dissolve an injunction after [an]

answer is filed the Court shall decide the motion upon the weight of the evidence.” The trial

court has the inherent authority to dissolve a preliminary injunction when presented with a

sufficient basis to do so (The Rochester Buckhart Action Group v. Young, 379 Ill. App.3d

1030, 887 N.E.2d 49 (4

Plaintiffs’ misrepresented claims caused the Court to abuse its discretion in entering the

preliminary injunction order (Ziller v. Rossi, ___ Ill. App.3d ___, ___ N.E. 2d ___ (2009 WL

3048440) (2

Christ v. Mannings, 156 Ill. App. 3d 356, 509 N.E. 2d 572 (1

survive the motion to dissolve, the Plaintiffs have to make out a prima facie showing that

they have raised a fair question as to the existence of the rights they assert (Id).

The supporting affidavits filed herewith (see 735 ILCS 5/11-109), the admissions

made by the Plaintiffs’ experts in their depositions, and the proper application of law dictate

the dissolution of the preliminary injunction. The Plaintiffs never raised a fair question. The

admissions now on file prove that the Plaintiffs never had a certain and clearly ascertainable

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right in need of protection, any possibility of irreparable injury or a likelihood of succeeding

on the merits (Mannings, 156 Ill. App.3d 356, 509 N.E.2d 572 (1

Defendants should no longer be barred from operating their legitimate business and

therefore request that the Court dissolve the preliminary injunction.

II. Legality Of Injunctions.

As a general proposition “an injunction will be granted only to restrain an actual,

existing nuisance, [though] a court of equity may enjoin a threatened or anticipated

nuisance, where it clearly appears that a nuisance will necessarily result from the

contemplated act or thing which it is sought to enjoin. This is particularly true where the

proof shows that the apprehension of material injury is well grounded upon a state of facts

from which it appears that the danger is real and immediate” (Fink v. Board of Trustees, 71

Ill. App.2d 276, 281-2, 218 N.E. 2d 240 (5

“Equity will not entertain jurisdiction and issue an injunction unless the complainant

shows that he will be injured if relief is not granted, and the allegations must be clear and

distinct that substantial injury will be sustained” (Irving-Austin Bldg. Corp. v. Village

Homebuilders, Inc., 312 Ill. App. 179, 37 N.E. 2d 927 (1

(reversal of decree enjoining installation of gas station)). Where the loss or harm to the

plaintiffs is minimal, while the benefits to the defendant are substantial, from an alleged

anticipatory nuisance, the court should refuse to enjoin construction (see Fink, 71 Ill.App.2d

at 278 (affirming denial of injunction as to construction of dam)). “A court of equity will,

under some circumstances, grant an injunction to restrain the erection of a nuisance, but

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with great caution” (Dunning v. City of Aurora, 40 Ill. 481 (1866)).

The court will not infer that, in effecting the lawful use of a property, a nuisance will

necessarily arise (see Thornton v. Roll, 118 Ill. 364 (1886)). Parties seeking injunctions

against prospective nuisances must sustain a very strong case, and if there exists “a

reasonable doubt . . . the injunction will be denied until the question of nuisance is

determined by actual use of the property” (Thornton, 118 Ill. 364 (1886) (internal quotation

marks omitted)).

To obtain injunctive relief against an anticipatory nuisance, “proof would be required

to go to the extent of satisfactorily showing that a nuisance is inevitable from the proposed

use of the premises” (Sutton v. Findlay Cemetery Ass’n., 270 Ill. 19 (1915)). Evidence

merely tending to show that a facility might become a nuisance is insufficient for an

injunction (Sutton, 270 Ill. at 19).

Prospective injunctive relief would only be available where it is highly probable that

specific proposed conduct will result in a nuisance, but such relief is totally inappropriate

where the prospective conduct is merely uncertain or contingent (see Village of Wilsonville v.

SCA Services, Inc., 86 Ill.2d. 1, 426 N.E.2d 824 (1981)). In Village of Goodfield v. Jamison,

188 Ill.App.3d 851, 544 N.E.2d 1229 (4

A party has a high burden in seeking a prospective injunction.

Our supreme court in Village of Wilsonville v. SCA Services, Inc.

(1981), 86 Ill. 2d 1, 26, 55 Ill. De. 499, 501, 426 N.E. 2d 824,

836, announced the standard by adopting the following

language of Fink v. Board of Trustees (1966), 71 Ill. App. 2d

276, 281-82, 218 N.E. 2d 240, 244:

Defendants are essentially establishing the absence of proof of the Plaintiffs’ claims and by

showing that the only physical evidence of the site proves an absence of karst. “A defendant

who moves for summary judgment may meet the initial burden of production either: (1) by

affirmatively showing that some element of the cause of action must be resolved in defendant’s

favor; or (2) by demonstrating that plaintiff cannot produce evidence necessary to support the

plaintiff’s cause of action” (Fabiano v. City of Palos Hills 336 Ill. App.3d 635 784 N.E. 2d 258,

265 (1

917 752 N.E. 2d 532 (1

producing evidence that would clearly entitle the defendant to judgment as a matter of law”

(Fabiano, 784 N.E. 2d at 265). Put another way, a defendant is entitled to judgment by showing

that some element of plaintiff’s case must be resolved in defendant’s favor, or by bringing to

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“While, as a general proposition, an injunction will be granted

only to restrain an actual, existing nuisance, a court of equity

may enjoin a threatened or anticipated nuisance, where it

clearly appears that a nuisance will necessarily result from the

contemplated act or thing which it sought to enjoin. This is

particularly true where the proof shows that the apprehension

of material injury is well grounded upon a state of facts from

which it appears that the danger is real and immediate. While

care should be used in granting injunctions to avoid prospective

injuries, there is no requirement that the court must wait until

the injury occurs before granting relief.”

Thus, plaintiff’s burden is that it must clearly appear that there is a

danger of a real and immediate injury occurring. Findings of fact made

by courts in this regard will not be set aside unless they are contrary to

the manifest weight of the evidence. Wilsonville, 86 Ill. 2d at 15, 55 Ill.

Dec. At 506, 426 N.E. 2d at 831; John J. Calnan Co. v. Talsma

Builders, Inc. (1977), 67 Ill. 2d 213, 218, 10 Ill. Dec. 242, 245, 367

N.E.2d 695, 698.

(see also Nickels v. Burnett, 343 Ill. App. 3d 654, 798 N.E. 2d 817 (2

(upholding preliminary prospective injunction where defendant failed to produce any

evidence; standard for injunction requires a showing that harm is “highly likely” and

“substantially certain to occur”)).

the Court’s attention the absence of evidence supporting the plaintiff’s position (Hutchcraft v.

Independent Mechanical Industries, Inc., 312 Ill. App.3d 351, 726 N.E. 2d 1171, 1174-75 (4

Dist. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). In such a motion, the

burden of proof is essentially on the nonmovant, meaning that “once defendant has satisfied

its initial burden of production, the burden shifts to plaintiff to present some factual basis that

would arguably entitle [it] to a judgment under the applicable law” (Hutchcraft, 726 N.E. 2d at

1175). As should be the case here, “summary judgment is the ‘put up or shut up’ moment in

a lawsuit, when a party must show what evidence it has that would convince a trier of fact to

accept its version of facts” (Johnson v. Cambridge Indus., Inc., 325 F. 3d 892, 901 (7

2003)).

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III. The Plaintiffs cannot support Sam Panno’s claims.

The Plaintiffs rely almost entirely on the testimony of Sam Panno, but discovery and

the use of the Freedom of Information Act have exposed Panno as a shill for the Plaintiffs - a

believer in their cause - and one who has used the cover of his job as a state employee to

mislead the Court. As is set forth in detail below, Panno has failed to perform the tests and

investigations he knows would absolve the site of his karst claims. Instead, Panno has, with

the collusive help of the Plaintiffs, and without seeking any input from the Defendants or any

objective third party, carefully selected his evidence of karst from places well away from the

Dairy site and he has attempted to shift the burden to the Defendants.

Not one of Panno’s reports includes a claim that Panno has any evidence of karst

conditions present on the site itself, despite the fact that he has been involved in this matter

for nearly two years, and despite the availability of the discovery process to substantiate his

claims. This Court has given Panno the time and opportunity to prove out his theories but he

has done nothing to do so. What is disturbing is that Panno has known all along exactly what

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he should have done to attempt to prove his claims. In an email to Philip Carpenter, a

scientist from Northern Illinois University, Panno asked:

“On a related subject, I am working with Tim Larson on examining karst

features in Jo Daviess County using GPR. You are probably aware of the

controversy over the mega-dairies up there. We are trying to show (beyond

their doubt) that the area where they cited [sic] the dairies and the area where

they plan to apply liquid waste to croplands is karst. My question is do you

think GPR will work in an area that has between 5 and 20 feet of glacial

material (some of which might be Maquoketa shale)? Would EM and resistivity

be better?”

Carpenter replied:

“I think any of the geophysical methods (EM, resistivity and even lowfrequency

radar) could work there. Radar is nice because it gives you an

image of the subsurface - - caves and epikarstal features tend to show up as

diffractions and sometimes you can actually image filled sinkholes and wide

pipelike fractures. However, the radar signal will not penetrate areas covered

with wet clay (e.g. slackwater lake deposits, very clayey tills, etc.) It may be

able to see through portions of the Maquoketa - - depending on what is

exposed on the surface. Some parts of the Maquoketa are less clayey, like the

Ft. Atkinson facies. The 2D and 3D resistivity sections can also show karst

features well, but sometimes the inverted data is unstable and the images

have an unrealistic “bubbly” look to them. I find it is important to have

multiple intersecting lines that produce consistent resistivity models. EM

generally gives you profiles and contour maps of apparent conductivity. These

can show you fracture trends and areas where sinkholes have been filled, as

long as you can see linear trends on the contour maps (like we saw at the

Columbia landfill). I find EM probably the most difficult of the three methods

to interpret.”

Panno replied:

“Really appreciate the information on remote sensing in JD County. Tim

mentioned the problems with clay and the Maquoketa. I have been looking at

air photos of the south site the one that the IDOA OKed) and I am pretty sure I

see sinkholes on the property. Would be interesting to do remote sensing on

those features; however, we could probably not dig them up because once the

sediment-Maquoketa cap is breached, the holes fil with groundwater”

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(Emphasis added) (see Affidavit of Counsel for Defendants, filed herewith).

Panno did use ground penetrating radar on a ½ mile stretch of Rte. 78 and about 200

feet on East Canyon Road, but he admits that the results were “inconclusive” (Panno dep. at

98-109) (filed herewith). He failed to include any of that information in any of his reports.

Panno did not conduct GPR, resistivity or low frequency radar testing on the Dairy property at

all, not one inch - - despite the availability of discovery tools and months of opportunity to do

so. Panno admitted in his deposition that he has no evidence of sinkholes on the property

(Panno dep at 75-78). Panno knew what to do and even suggested what he might do - but he

never did it.

On a related topic, whether the presence of karst conditions can be determined by

testing stream water, in an email exchange in which Panno was included, his co-worker at the

ISGS, Pius Weibel, explained how one would establish whether a stream is a “gaining” or

“losing” stream (i.e., whether there is evidence of karst):

“It is very difficult to determine the presence of a losing (or gaining) stream by

casual observation. At the minimum, one should have made a number of crosssections

of the stream and then determined flow rates at each site. This would

result in volumetric data which then could be used to determine whether there

is a loss or gain or neither at the stream. Note that I am not saying that there is

disputed drainage - I am only saying that their methodology is flawed and their

conclusions are thus unreliable.

Sam, please comment if you feel the need” (Defendants’ Counsel’s affidavit).

Despite this seemingly clear directive, Panno failed to follow his own co-worker’s suggestion -

Panno never performed such a test.

Even though Panno ignored Weibel’s suggestions, the Plaintiffs had another expert

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study the water: Eric Peterson. Peterson was listed as a Rule 213 expert for the Plaintiffs but

he was dropped as a witness after his findings were discovered via the Freedom of

Information Act. Peterson’s findings are:

“Dave,

I can give you the results from the anion samples for the one round of sampling

we conducted on the site and for the 5 other rounds of sampling we have done

in the area. There is nothing within the water samples that definitively

identifies the area as karst. The samples do show that the water is near the

EPA maximum contaminant level for nitrates, which suggests that current land

use is impacting the streams. Let me know if you want a formal report with

these data and information (Emphasis added).

I also wanted to let you know that I will be unavailable from May 25-July 29. I

will either be in the field conducting research, teaching our field course, or

away at conferences.

Eric

* * *

Sam,

Things are going well, but are busy as usual. I am trying to tie up loss ends

before I start my field season and also teach two field camps. I look forward to

seeing your report.

As for the Megadairy work, we have been sampling the streams around the

area (as seen in the GSA presentation). We are sampling for both cations and

anions. I was hoping to use the water signature to get a sense of the source. All

of the waters plot as CaMg HCO3 waters, which is not surprising, which suggest

that there is a high degree of interaction with carbonate rocks. However, once

we were able to walk the streams, most of the streams originate from tile

drains. That is not to say that there is no gaining of water from the bedrock, but

given the probably potentiometric surface, I would guess that there is little

water coming up to the stream. We did not do any other reconnaissance since

we do not have the proper field equipment. Essentially, all we are equipped to

do is water samples. Now, we did noticed [sic] limestone with some small

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fractures in the streambeds within the property, but our photos did not turn out

because of the weather. Any ideas on how we should move forward? To be

honest, I am not sure what I have to offer” (Emphasis added).

Here is what Panno had to say:

“Don and Tim,

I got this from Dave Albee (the lawyer for the HOMES people). Not sure what

the heck Eric Peterson was trying to do with anions.

Sam” (Id.).

Panno also received guidance from Malcolm Field of the USEPA - someone Panno

trusts as having expertise in the field (Panno dep. at 56):

“Hi Sam,

Thank you for sending me the link.

Sinkhole identification from air photos is extremely difficult (impossible?)

because only very large sinkholes may be identified. Sinking streams (streams

that flow directly into a swallow hole) and losing streams (streams that leak

water through their beds) are the best features for conducting tracer tests.

Sinkholes with defined swallow holes at their bottoms are next best. The only

way to find the sinkholes at any given site is to conduct extensive field work

supplemented by talking with locals.

If no suitable sinkholes can be found, then it becomes necessary to construct

an injection point. This can be a trench or some sort of excavation that drains

water very rapidly; a line of “wells” drilled just into the top of the epikarstic

zone that are shown to drain water; or other drainage features. Experienced

tracer professionals will be familiar with these types of constructed injection

points” (Emphasis added) (Defendants’ Counsel’s Affidavit).

Panno did not follow Malcolm Field’s protocol. He didn’t seek to install test wells or to

use tracers.

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Malcolm Field commented further, in a “review” he forwarded to Panno:

“Typically the method employed from identifying inflowing water into streams is

to survey both stream banks and the streambed with a temperature/electrical

conductivity meter. If the conductivity suddenly rises it is likely an indication of

inflowing water; this is then cross-checked with temperature. If the

temperature suddenly goes down at this location in the summer (or vice versa

in the winter) it may be taken as confirmation of inflowing water. Visually, this

inflow is unrecognizable.

As for determining if a stream loses water investigators must rely on highquality

synoptic discharge measurements at select stream reaches. This is

basic and essential for identifying stream reaches that are either losing of

gaining. However, a single set of measurements is still worthless.

I repeat my earlier admonition, i.e., that unless or until it is proven that this site

is not karstic you must assume that it is. Site investigation is best achieved by

having an expert tracer hydrologist conduct tracer tests at the site” (Id).

Panno failed to conduct synoptic discharge measurements at selected stream

readings, nor did he have an expert tracer hydrologist conduct tracer tests at the site. Panno

did, however, buy into Field’s suggestion that the burden to disprove karst should be foisted

on the Defendants - - i.e., an assumption of karst should be made. At his deposition, Panno

admitted:

Q. I mean isn’t the real bottom line here from your point of

view that because this is in a karst region we should all

assume it’s karst until someone proves conclusively to

the contrary.

A. That’s a fairly simple way of putting it. I think so, yes,

(Panno Deposition at 138).

That has been Panno’s real approach all along, although he’s tried to hide it. In an

email to a hydrologist he knows, Panno made this admission:

“I am setting up a trip to NW Illinois near Galena to examine the proposed

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mega-dairy site. We plan to conduct ground penetrating radar. (GPR) around

the site to see if we can pick up crevices. The site is covered with snow and ice

and will be so covered when we walk around on it. There is no money for any

dye tracing or trenching on the site. I must limit my studies to the GPR and

examining excavations made by the dairy people. Unfortunately, the

excavations immediately fill with groundwater after they cut through the

sediment and whatever Maquoketa shale is there (5 to 20 feet of material).

The waste lagoons will be at least 20 feet deep, so they will be within the

Galena Limestone (2 feet of compacted clay lined). The point made by the

owners of the dairy is that only the bottom of the waste lagoons have to have

no karst features (solution-enlarged crevices.)

They are planning to apply the waste to the fields in the area as fertilizer. This

all sounds really bad to me given the leakiness of clay liners and the

application of liquid manure onto a karst area upgradient of private wells.

My questions is this:

I have one shot at this with no money to spend. We are going to do the GPR on

roads around the site. I could possibly find someone willing to excavate a

trench on the site following identification of karst features using GPR. Nothing

more exotic that that and that is iffy.

What would you suggest as far as karst identification/site characterization on

my part? The part of the owners?

Thanks,

Sam” (Emphasis added) (Id).

The Plaintiffs’ only other remaining expert, Peter Huettl, also admits that there is no

direct evidence of karstified carbonate bedrock under the containment ponds but he claims

that an assumption should be made that karst is present (Peter Huettl dep at 45-47) (filed

herewith).

In a disturbing email from Matthew Alschuler to Panno, the two consider a trial

strategy, one that ignores the Plaintiffs’ burden of proof, tries to shift the burden to the

Defendants, and sidesteps Panno’s own lack of good science:

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“The one item I’d like to touch on further is other methods that karst scientists

would use to do testing . . .you mentioned them in your letter to David, such as

carefully monitoring an on-site stream to see if it gains in spring, loses in fall,

etc., plus the dye tracing. I’d like to get into the judges mind that there are set

methods, approved by experts in the field of karst, that are used when you

really want to know the truth. That way, when Bos’s expert gets on the stand,

and mentions none of them, the judge can remember that there are better

methods . . . and David can cross examine him, asking him why he didn’t

measure the stream, do a dye trace, etc.

Then if he says he did “look at” the stream, we can call Pius, or you, back to

the stand, and explain to the Court that simply looking at a stream tells the

observer nothing. This shows that their expert isn’t using proven methods, and

helps our case (Id).”

Alschuler and Panno obviously knew and discussed these “set methods”and Panno

obviously described them to Albee in a letter (which Albee and Panno have improperly

withheld) - but Panno never reported those in his reports. His alignment with the Plaintiffs is

palpable - - despite attempting to hold himself out pursuant to the badge of a public servant.

Sam Panno’s deposition has resulted in admissions establishing his failure to conduct

any meaningful site specific investigation (Panno deposition at 130-132). He admits that his

opinions about karst are a “theory” (Id. at 133-134). He admits that he does not know

whether the facility is a threat to the karst aquifer if it is built as designed (Id. at 135). He

admits that he has been to the site and that he cannot prove that there are any sinkholes on

the property (Id. at 75-77;82). He cannot prove that the rock corings taken at the site show

any evidence of karst (Id. at 68-70). He admits that he used GPR along a ½ mile stretch of

Route 78 and 200 feet East Canyon Road and that the results were inconclusive but that he

failed to include that in his report (Id. at 98-100). Importantly, Panno made no effort to run

his GPR equipment on the site itself. He also testified about a “seismic” technique he has

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used in the past to identify karst, but he didn’t bother to do that on this site either (Id. at 106-

107).

He admits that “Lidar” and lineaments” are only predictions and that further

investigation must be done to support the claim (Id. at 33-36). His reports make no such

admission; rather, he claims that the lineaments alone prove karst (Plaintiffs’ Rule 213

disclosures). Of course, Panno has admitted that he has done nothing on the site to

“investigate further” his claims (Id. at 33-35).

Panno’s visits to the area and the site prove that he has not been objective. His

property inspections were arranged only through the Plaintiffs; Panno could not identify a

single objective person he worked with (Id. 13-31). Panno made no real effort to gather

information other then through the Plaintiffs (Id. at 35-39). As such, Panno was directed to

various places where the Plaintiffs thought there was evidence of karst (but notably not the

Dairy site) (Id. at 39-42). Panno’s conduct is deceptive. Not only have the Plaintiffs failed to

sustain Panno’s claims but the unblemished record shows that Panno has worked with the

Plaintiffs to withhold case determinative information from this Court.

IV. There is no evidence of karstified carbonate bedrock.

The Plaintiffs cannot dispute - they have no contrary evidence - that there were 15 soil

borings, 3 more soil borings with vertical rock corings, 2 more soil borings with angled rock

corings, 3 excavations and 9 documented probes into the ground at the site and in the exact

area where the containment ponds will be located. (see Affidavit of Terry Feldmann, filed

herewith). The Plaintiffs offer no evidence of karstified carbonate bedrock from the actual

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physical data. The Plaintiffs have utterly failed to inspect, examine, debate or disprove that

uncontrovertible fact. Their experts declined to review the physical evidence and admit that

the data provides no evidence of karstified carbonate bedrock (Panno deposition at 66-70;

Huettl dep at 51-53). Huettl admitted that he was not aware that the Defendants’

contractor’s excavated 3 test pits during construction and he didn’t know how the 9 probes

were performed (Huettl dep at 75-78). It is untenable that any injunction could survive those

indisputable facts.

V. The Plaintiffs are incorrect as a matter of law in asserting that the Dairy is within a

“karst area.”

The Plaintiffs appear to advance the claim that they do not require site specific

evidence of karst, thus explaining their abject failure to produce any such evidence, on the

strength of a claim that the containment ponds are within a “karst area.” The Plaintiffs seem

to suggest that they should win under the ILMFA (735 ILCS 77/13 (b(2)) and the

implementing regulations (35 Ill. Adm. Code 506.312 (b)). That section provides, “[a]ny

livestock waste handling facility constructed in a karst area shall be designed and

constructed utilizing a rigid material such as concrete or steel” (Id.) (Emphasis added).

Apparently seizing on the word “area,” the Plaintiffs only argue that the containment ponds

are in a “karst area”due to their claims of karst on other property miles away from the ponds.

However, the Plaintiffs are incorrect as a matter of law in asserting that the ponds are within

a “karst area.”

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First, there is little doubt that Panno himself espouses this notion - a sort of regional

approach - - because his emails show that to be the case. Panno’s first connection with the

case included his conclusion, without even identifying the location of the Dairy, that it was

“most likely underlain by a karst aquifer”:

A colleague mentioned something about the planned mega dairy to me last

week, but he didn’t know where in Jo Daviess County. I did a preliminary

examination of the area near Nora, IL and compared it with some work we did

in the area about 10 years ago and our bedrock geology map. The area is

underlain by Ordovician-age Galena Limestone which contains karst features.

That is, groundwater flows rapidly through crevices (sometimes solutionenlarged

crevices) and along bedding planes within the Galena Limestone.

Caves are the most diagnostic karst feature in the area and one is located less

than 3 miles southwest of Nora. So yes, I would say that the area around Nora,

IL is most likely underlain by a karst aquifer. The significance of that is that

recharge from the surface can rapidly enter a karst aquifer and groundwater

flow can be rapid (miles per hour) as opposed to a sand and gravel aquifer

where groundwater typically flows at rates of inches to feet per year.

Consequently, the potential for groundwater contamination from such a facility

in an area overlying a karst aquifer can be high. (Defendants’ consel’s affidavit,

Ex. 12).

Panno obviously made his conclusions before he undertook any analysis of the Dairy

property. Panno’s views are even more obvious in an email he sent to a Freeport, Illinois

newspaper reporter:

The statement “No karstified carbonate bedrock was found in an additional set

of soil borings and rock corings completed on the site of the proposed

Traditional Family Dairies near Nora” is dependent on how one interprets the

findings of the drilling. Specifically, the bedrock in the area is made up of

Galena Group carbonate rock; this is predominantly dolomite. Where exposed

in road cuts and quarries, this rock reveals karst features such as verticallyoriented

crevices an inch or more wide. That is why Pius Weibel and I originally

identified the area as karst in our “Karst Terrains and Carbonate Rocks of

Illinois” map in 1997. My interpretation of the Livestock Waste Regulations

and the findings of the drilling on the proposed dairy sites is that the carbonate

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bedrock intersected by the drillers just below the soil zone is “aquifer material”

and the proposed sites are located in a “karst area” as defined by the

regulations (Emphasis added) (Id. at Ex. 13).

The problem is that the Dairy is not located in a “karst area.” The ILMFA defines “karst

area” as “an area with a land surface containing sinkholes, large springs, disrupted land

drainage and underground drainage systems associated with karstified carbonate bedrock

and caves or a land surface without those features but containing a karstified carbonate

bedrock unit generally overlain by less than 60 feet of unconsolidated materials” (510 ILCS

77/10.24). Karstified carbonate bedrock is bedrock that “has a pronounced conduit or

secondary porosity due to dissolution of the rock along joints, fractures or bedding plains”

(510 ILCS 77/10.26). The word “area” is not a defined word in the ILMFA. However, Panno’s

own publicly available work shows that the property is not identified as a karst area on the

ISGS Map entitled, “Karst Areas of Illinois” (attached). That map shows “karst areas” in the

identical locations as “sinkhole areas” on the ISGS “Karst Terrains and Carbonate Rocks of

Illinois, IDNR-ISGS Illinois Map 8 (attached) (see also Map: Aquifer Sensitivity to

Contamination by Pesticide Leaking in Illinois, Open file series 1995-55) (defining “karst

areas” in Illinois to exclude the Dairy)).

Further, the ILMFA and the implementing regulations use the ISGS maps as the basic

tool to determine how to investigate a specific site and when rigid materials such as concrete

or steel may be required for liners. The regulations are straightforward on this point:

1. If the waste handling facility (“those immovable constructions or devices...

used for collecting, pumping, treating, or disposing of livestock waste”) (510 ILCS 77/10-40)

18

(in this case the ponds), is located in a sinkhole area on ISGS Illinois Map 8, then, among

other things, a rigid material such as concrete or steel containment system, or another

system as approved by the IDOA must be used. Note that the IDOA has the authority to

modify the requirement for a steel or concrete containment if the Department believes that

another system is appropriate; there is no automatic requirement of steel or concrete (35 Ill.

Adm. Code 506.302 (g) and (g)(4)(B); 35 Ill. Adm. Code 506.312(b) and (c)). The ISGS Maps

do not show the ponds (or the Dairy at all) in a sinkhole area or in a karst area. Importantly,

the ISGS Maps show “sinkhole areas” and “karst areas” as the same thing.

2. If the proposed facility (the ponds) is not located in a sinkhole area pursuant to

the ISGS Maps, then a sampling protocol, under the guidance of the IDOA, is required and the

design is based on the results of the sampling (35 Ill. Adm. 506.302 (b)-(f); 35 Ill. Adm. Code

506.310). The samples are required to be within the ponds or within 20 feet of the

boundaries of the ponds (506.302 (b)).

3. If the sampling on the site done under 506.302(b), above, (i.e., where the

Ponds are not in sinkhole areas on the ISGS Map), demonstrates that the waste handling

facility is to be located in a karst area (i.e., if the sampling shows karstified carbonate

bedrock), then, among other possible requirements, a rigid material such as concrete or

steel, or some other material approved by the IDOA, shall be used for the liner (35 Ill. Adm.

Code 506.302 (g) (1)-(4)).

advanced that those 5 corings show any evidence of a “pronounced conduit or secondary

porosity due to dissolution of the rock along joints, fractures or bedding plains” (510 ILCS

77/10.26)

19

Here, under the rules of statutory construction, the Court has to interpret the

regulations harmoniously so that the provisions work together. The ponds are obviously not in

a sinkhole or karst area under the ISGS Maps, so that’s no help to the Plaintiffs. That being

the case, it is the soil samples taken within the ponds or within 20 feet of the boundary of the

ponds under 506.302(b) which triggers the further investigation and possible requirements

for a rigid liner such as steel or concrete (506.302 (g) (1)-(4) (“If the results of the soil

sampling conducted pursuant to Section 506.302(b) of this subpart indicate the proposed

livestock waste handling facility is to be located in a karst area . . .”).

protocol is limited to the ponds or within 20 feet of the boundary of the ponds, the word

“area” cannot be interpreted to mean some ill-defined boundaryless expanse, as the

Plaintiffs would have it. The ILMFA and implementing regulations are site specific. The actual

language is as follows:

Section 506.302 Site Investigation

a) The owner or operator of a livestock

waste handling facility shall conduct a

site investigation in accordance with

the requirements of this Section to

determine the following:

1) Whether aquifer material is

considered present (or not

present) within 5 feet of the

planned bottom of the livestock

waste handling facility;

2) Whether the proposed facility is

to be located within the floodway

or flood fringe of a 100-year

floodplain; and

3) Whether the proposed facility is

to be located within a karst area

or within 400 feet of a natural

20

depression in a karst area.

b) Except for facilities that are proposed

to be located within an area

designated as “Sink hole areas” on

“Karst Terrains and Carbonate Rocks

of Illinois”, IDNR-ISGS Illinois Map 8,

the owner or operator shall obtain soil

samples from within the final livestock

waste handling facility area or within

20 feet of the livestock waste

handling facility boundaries. The

sampling shall be performed to

determine the presence of aquifer

material or karstified carbonate

bedrock as follows:

1) The soil sampling shall begin at

the soil surface and extend to a

depth that includes a minimum

of 5 feet below the planned

bottom of the livestock waste

handling facility native soil or to

bedrock;

2) If bedrock is encountered,

additional soil samplings may be

necessary to verify the presence

of aquifer material or karstified

carbonate bedrock;

3) Continuous samples shall be

recovered from each soil

sampling; and

4) Upon completion, any boring

used for sampling shall be

properly abandoned and sealed

pursuant to the Illinois Water

Well Construction Code at 77 Ill.

Adm. Code 920.120. Any

excavation used for sampling

that is within the construction

boundaries of the livestock

management facility or livestock

waste handling facility shall be

restored by the addition of soil

compacted in lifts no greater

than 6 inches.

c) If the Department determines that

additional soil samplings are

necessary to ensure the protection of

the groundwater, surface water or the

structural integrity of the livestock

waste handling facility, the

Department shall require additional

soil samplings.

* * *

g) If the proposed livestock waste

handling facility is to be located within

an area designated as “Sink hole

areas” on “Karst Terrains and

Carbonate Rocks of Illinois”, IDNRISGS

Illinois Map 8 or if the results of

the soil sampling conducted pursuant

to Section 506.302(b) of this Subpart

indicate the proposed livestock waste

handling facility is to be located in a

karst area, the following requirements

shall be met:

1) The Department shall conduct a

visual inspection of the

surrounding area to determine

the presence of natural

depressions during the pre21

construction site inspection as

required pursuant to 8 Ill. Adm.

Code 900.505(a). Construction

may not occur within 400 feet of

a natural depression in a karst

area;

2) The owner or operator shall

perform one or more soil borings

that shall be located within the

final livestock waste handling

facility area or within 20 feet of

the livestock waste handling

facility boundaries to determine

the presence of voids. The boring

shall begin at the soil surface

and extend to a depth that

includes a minimum of 20 feet

below the planned bottom of the

livestock waste handling facility;

3) Continuous samples shall be

recovered from each boring;

4) The Licensed Professional

Engineer, Licensed Professional

Geologist, or USDA-NRCS

representative designated to

perform such functions shall

evaluate the results of the soil

boring. If a void of 1 foot or

greater in vertical distance is

discovered from the soil boring

performed pursuant to

subsection (g)(2) of this Section,

the following requirements shall

be met:

A) The Department may require

additional borings to

determine the extent of the

void;

B) Notwithstanding the other

requirements of this

Subpart, the owner or

operator shall submit to the

Department a plan for the

design of the facility that

shall include the additional

design requirements set

forth in Section 506.312 of

this Part and shall include

any additional design

requirements deemed

necessary by the Licensed

Professional Engineer; and

C) The Department shall review

and approve the plan

required pursuant to

subsection (g)(4)(B) of this

Section prior to construction.

The Department may also

require additional design

criteria before the plan is

approved and construction

may begin.

If, as a result of the soil boring, no

voids of 1 foot or greater in vertical

distance are discovered, the design

shall include the additional

requirements set forth in Section

506.312 of this Subpart.

* * *

22

Section 506.312 Additional Design and

Construction Standards for Construction

in a Karst Area

a)

[510 ILCS 77/13(b)(2)]

b) Any livestock waste handling facility

constructed in a karst area shall be

designed and constructed utilizing a

rigid material such as concrete or

steel.

c) The owner or operator of the livestock

waste handling facility may, upon

written request and with written

approval from the Department, modify

or exceed these standards in order to

meet site specific objectives. The

owner or operator shall demonstrate

that such modification shall be at

least as protective of the groundwater,

surface water, and the structural

integrity of the livestock waste

handling facility as the requirements

of this Part.

23

Based on the foregoing, the Plaintiffs cannot credibly claim that the ponds, or any

portion of the Dairy for that matter, are located in a “karst area.”

VI. Conclusion.

The Defendants request the Court to dissolve the preliminary injunction, and to award

the Defendants such other relief as the Court deems just and proper.

A.J. Bos and Tradition Investments, LLC, an Illinois

Limited Liability Company.

Defendants

By: McGreevy Williams, P.C.

BY: ____________________________________

One of Their Attorneys

Donald Q. Manning

McGreevy Williams, P.C.

6735 Vistagreen Way

P.O. Box 2903

Rockford, IL 61132

(815) 639-3700

(815) 639-9400 (Fax)

Thomas J. Nack, Esq.

Nack, Richardson & Nack, P.C.

P.O. Box 336

106 North Main Street

Galena, IL 61036

24

STATE OF ILLINOIS )

) SS.

COUNTY OF WINNEBAGO )

AFFIDAVIT OF SERVICE

I, the undersigned, being first duly sworn on oath, depose and say that I served the

David Albee, Esq.

320 Elk Street

Galena, IL 61036

Charles Cronauer, Esq.

Attorney at Law

1101 DeKalb Avenue

Sycamore, IL 60178

by placing a true and correct copy of said document in an envelope, addressed as is shown

above; that I sealed and placed sufficient U.S. postage on said envelope; that I deposited

said envelope so sealed and stamped in the United States mail at Rockford, Illinois, at or

about the hour of 5 o'clock P.M., on the ____ day of October, 2009.